Bhola Nath Rai v. Ram Briksh Rat — 1964 DIGILAW 464 (ALL)

JUDGMENT D.S. Mathur, J. - This is a revision u/s 115 CPC by Bhola Nath Rai and two others, Defendants (they have been wrongly referred to in the revision as Plaintiffs) against the order of the District Judge of Ghazipur, dismissing their appeal and thereby affirming the order of the Civil Judge of Ghazipur passed in a proceeding under See. 12 of the UP Agriculturists' Relief Act (to be referred hereinafter as the Agriculturists' Act). 2. Ram Briksh Rai, Plaintiff, who is now represented by his legal representative, Bishwanath Rai and four others, had usufructuarily mortgaged the plots in dispute with the predecessorin title of the present applicants under four different mortgage deeds In 1941 Ram Briksh Rai moved an application u/s 12 of the Agriculturists' Act for redemption of the mortgages and also for possession with the allegation that the mortgages had been satisfied in full. It was, however, held that the profits from the land did not exceed the interest and that the total mortgage money was due. Ram Briksh Rai does not appear to have taken any further step in that proceeding; but in 1950 he moved the present application u/s 12 of the Agriculturist's Act for redemption of the mortgages with the same allegation that the total mortgage debt was paid up out of the usufruct and nothing was due. This plea found favour with the Civil Judge of Ghazipur and he directed the redemption of the mortgages and ordered the mortgagees to deliver possession on Jeth Sudi 15 of 1952. 3. The applicants-mortgagees went up in appeal before the District Judge though unsuccessfully. The District Judge confirmed the order of the Civil Judge holding that the Plaintiff was entitled to possession after redemption of the mortgages without payment of any further sum to the Defendant-mortgagees. At the same time, the Defendants were directed to pay the Plaintiff costs of both the courts. 4. The Defendants have moved this revision raising two points: firstly, that after the repeal of the Agriculturist's Act under tne UP Zamindari Abolition and Land Reforms Act (to be referred hereinafter as the Zamindari Abolition Act) the proceeding u/s 12 of the Agriculturist's Act could not be continued, nor could they be dispossessed in that proceeding; and secondly that, the lower appellate court has acted illegally while determining the profits from the mortgaged land. 5. 5. It is evident that the mortgaged agricultural plots were the Sir pints of Ram Briksh Rai, Plaintiff, except for plot a.-). 58, measuring 12 biswas, which was his fixed rate tenancy. Another material point, which may be mentioned again though at the risk of repetition, is that the present suit was instituted in 1950 and the Agriculturist's Act was repealed under the U.P. Zamindari Abolition and Land Reforms (Amendment) Act 1952, (UP Act No. XVI of 1953), though the repeal was to take effect from the date of vesting, i.e. July 1, 1952. The application u/s 12 was thus maintainable on the date it was made. The question naturally arises whether the proceeding could be continued after the repeal of the Agriculturist's Act. 6. The learned advocates for the parties invited my attention to two decisions of this Court where the continuance of the proceeding u/s 12 of the Agriculturist's Act was challenged. In Pandit Gopinath and Anr. v. Pandit Bhanu Shanker Yasnik (1) ( 1954 AWR 241 (HC) the proceeding u/s 12 was not quashed and the order directing the dispossession of the mortgagees was maintained. It was held that the repeal of the Agriculturist's Act did not affect the decision of the revision. This was a case where the mortgaged property consisted of a snoop situate in the city of Aligarh and being within the municipal limits, the provisions of the Zamindari Abolition Act did not apply to the area. The Agriculturist's Act was repealed Under Clause (a) of Section 339 of the Zamirdari Abolition Act, and the section makes it clear that the Agriculturist's Act was repealed in its application to areas governed by the Zamindari Abolition Act. Hence the Agriculturist's Act did not stand repealed in its application to the area in which the mortgaged property was situate and the proceeding u/s 12 could be continued. Further, unlike the instant case, the Agriculturist's Act was repealed after the decision of the appeal by the District Judge. Chet Narayan Singh v. Jangali Singh and Others (2) (1961 ALJ 877) is, however, a case where the proceeding u/s 12 of the Agriculturist's Act was quashed and dispossession of the mortgagee was not ordered. The observations made therein make it clear that this role is not necessarily applicable to each and every agricultural plot. Chet Narayan Singh v. Jangali Singh and Others (2) (1961 ALJ 877) is, however, a case where the proceeding u/s 12 of the Agriculturist's Act was quashed and dispossession of the mortgagee was not ordered. The observations made therein make it clear that this role is not necessarily applicable to each and every agricultural plot. It shall be found that stress was laid upon the provisions of the Zamindari Abolition Act and the Agriculturist's Act held to have been repealed retrospectively and the repeal was to affect the pending cases also where it was not possible to eject the mortgagee unless some action under the Zamindari Abolition Act was taken. This would be apparent from the following observations contained in the last but one para of the judgment: Under Section 200 of the Zamindari Abolition and Land Reforms Act no Asami can be ejected from his holding except as provided in the Zamindari Abolition and Land Reforms Act. Consequently the opposite parties who are now Asamis, cannot be ejected or dispossessed on any around except through a suit filed u/s 202. The remedy of the applicant, after the repeal of the, Agriculturist's Relief Act, was to file a suit for their ejectment u/s 202 on the ground that the mortgage had been satisfied. It is impossible for him to eject them through a proceeding u/s 12 of the Agriculturist's Act. 7. The law laid down in this case, in substance, is that where a mortgagee has been conferred a right, directly or by implication, under the Zamindari Abolition Act and his ejectment is not possible except on an action taken under this Act, the Agriculturist's Act shall be deemed to stand repealed retrospectively and the proceedings pending on the date of the repeal of the Agriculturist's Act cannot be continued and shall have to be dropped. This rule cannot naturally be applied to mortgagees who have acquired no right under the Zamindari Abolition Act or who can be ejected or dispossessed in a suit for proceeding under some enactment other than the Zamindari Abolition Act. This rule cannot naturally be applied to mortgagees who have acquired no right under the Zamindari Abolition Act or who can be ejected or dispossessed in a suit for proceeding under some enactment other than the Zamindari Abolition Act. In their case Section 6 of the UP General Clauses Act shall be applicable, and as the Agriculturists' Act has not been specifically repealed retrospectively, nor can as far as such mortgagees are concerned the Agriculturist's Act be deemed to have been so repealed, the proceedings u/s 12 pending on the date of repeal can be heard and decided as it the Agriculturist's Act had not beep repealed. 8. With this legal aspect in mind we can proceed with the consideration of the facts of the instant case to lay down whether the proceeding u/s 12 of the Agriculturists' Act should have been discontinued, and if so, to what extent? 9. As already mentioned above, all the plots other than plot No. 58 were the Sir of the mortgagor, Ram Briksh Rai, on the date of the mortgages while plot No. 58 was his fixed rate tenancy. Under Clauses (a) and (c) of Section 18 (1) of the Zamindari Abolition Act the mortgagor, holding the land as Sir or as a fixed rate tenant, became the Bhumidhar of all the plots; but by virtue of Clause (d) of Section 21(1) of the Zamindari Abolition Act the mortgagees became Asamis of plot No. 58 only which was in fixed rate tenancy, and not of others which were the Sir of the mortgagor. It shall be found that Clause (d) of Section 21(1) does not cover Clause (a) of Section 18(1) and consequently the mortgagee of Sir, Khudkasht or intermediary's grove does not become an Asami. 10. An asami can be ejected u/s 202 ofthe Zamindari Abolition Act and as provided in Clause (d) thereof, an asami belonging to the class mentioned in Section 21(1)(d) is liable to ejectment on the suit of the landholder, i.e. of the mortgagor, provided that the mortgage has been satisfied or the amount due has been deposited in court. Section 200 of the Zamindari Abolition Act clearly lays down that: No sirdar, or asami shall be ejected from his holding except as provided in this Act. Consequently, the applicants-mortgagees cannot be dispossessed from plot No. 58 unless action is taken u/s 202 of the Zamindari Abolition Act. Section 200 of the Zamindari Abolition Act clearly lays down that: No sirdar, or asami shall be ejected from his holding except as provided in this Act. Consequently, the applicants-mortgagees cannot be dispossessed from plot No. 58 unless action is taken u/s 202 of the Zamindari Abolition Act. Their dispossession from this plot under the provisions of the Agriculturists' Act was thus not permissible and when such an order cannot be passed the Agriculturists' Act shall be deemed to have been repealed retrospectively. In other word, the proceeding u/s 12 of the Agriculturists' Act with regard to plot No. 58 had to be discontinued. 11. Section 14 of the Zamindari Abolition Act governs mortgages of an estate of an intermediary including his sir or khudkasht. Sub-section (1) thereof provides that: Subject to the provisions of Sub-section (2), a mortgagee in possession of an estate or share therein shall, with effect from the date of vesting, cease to have any right to hold or possess as such any land in such estate. Clause (a) of Sub-section (2) of Section 14 makes a provision for sir or khudkasht of the mortgagor. In case the mortgaged land was sir or khudkasht of the mortgagor on the date of mortgage and such land was in the personal cultivation of the mortgagee on the date immediately preceding the date of vesting, the same shall, for purposes of Section 18, be deemed to be the sir or khudkasht of the mortgagor or his legal representative. In other words, the mortgagor or his legal representative becomes the bhumidhar of the sir or khudkasht plots and the mortgagee has no right to hold or possess such land. The mortgaged plots other than plot No. 59 were admittedly the sir of the mortgagor on the date of the mortgage and hence on the date of vesting, i.e. on July 1, 1952 the opposite parties became their bhumidhars and the applicants-mortgagees ceased to have any right or title thereto. 12. Even though the applicants mortgagees had no right to hold or possess the plots in dispute other than plot No. 58, they can like other persons in possession acquire fresh rights as sirdars if no steps for their dispossession are taken within the prescribed period. This leads us to the consideration of the allied question whether the applicants have become sirdars. This leads us to the consideration of the allied question whether the applicants have become sirdars. In such a case they cannot, by virtue of Section 200 of the Zamindari Abolition Act, be ejected from the holding except as provided in this Act and hence they cannot be dispossessed in a proceeding u/s 12 of the Agriculturists' Relief Act and such a proceeding shall have to be dropped. 13. Considering that the applicants had no right to hold or possess the above land they could, u/s 210 of the Zamindari Abolition Act, become sirdars if no suit was instituted u/s 209 within the period of limitation provided for the filing of the suit. This raises two questions, was a suit u/s 209 maintainable during the pendency of the present litigation, and whether the period of limitation for such a suit has or has not already expired ? 14. Section 209 of the Zamindari Aboliiion Act makes a provision for the ejectment of a person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force. Where ever the legislature wanted the law to mean the Zamindari Abolition Act the words "this Act" had been used. Consequently, the words "law for the time being in force" must be given a wider meaning, and shall cover any law in force. A suit u/s 203 shall thus be maintainable only if the person takes or retains possession illegally, i.e. against the law. 15. The Civil Judge allowed the application u/s 12 of the Agriculturists' Act under order dated 22.10.1951 and allowed redemption, i.e. directed the mortgagees to deliver possession to the mortgagor, on Jeth Sudi 15 of the year 1952. The mortgagees had no right to remain in possession after this date, and thereafter their possession became illegal. However, inview of the subsequent steps taken by the mortgagees themselves their possession ceased to be against the law. The mortgagees had first of all preferred an appeal before the High Court but after the memorandum of appeal was returned for presentation before a competent court it was re presented before the District Judge. The appeal was dismissed on 10.10.1963, where after they filed the present revision. At each stage they obtained a stay order and the execution of the decree or their ejectment was stayed. The appeal was dismissed on 10.10.1963, where after they filed the present revision. At each stage they obtained a stay order and the execution of the decree or their ejectment was stayed. For so long as the mortgagees were in possession of the land under orders of the appellate or revisional court they could not be dispossessed there from and their possession could not be said to be illegal, nor against the provisions of the law for the time being in force. It was after the return of their memo of appeal by the High Court and the dismissal of the appeal on 10.10.1963 that steps for dispossession could be taken but at each occasion fresh stay order was obtained, at the first occasion from the District Judge and at the other from the High Court, and the mortgagor had no occasion worth the name to apply for the execution of the orders passed in the proceeding u/s 12 of the Agriculturists' Act or to sue for ejectment u/s 209 of the Zamindari Abolition Act. For all the practical purposes, therefore, the possession of the applicants mortagagees was never against the law and no suit u/s 209 of the Zamindari Abolition Act was maintainable. In any case, the period of limitation provided for a suit u/s 209 has not expired. The period now prescribed is six years and the aggregate of the periods during which there was no stay order would not exceed one year. 16. When the period of limitation provided for the filing of a suit u/s 209 has not expired, the person retaining possession does not become a sirdar: he continues to be holding the land without any right or title. To put it differently: the applicants-mortgagees have not acquired the status of sirdars and cannot avail of the protection from ejectment granted to asamis and sirdars u/s 200 of the Zamindari Abolition Act. 17. The Zamindari Abolition Act does not, like Section 200, give protection to trespassers, i.e. persons taking or retaining possession of land otherwise than in accordance with the law, except on an action taken u/s 209, Hence, such persons can be ejected in a suit u/s 209 of the Zamindari Abolition Act or in a proceeding' under any other enactment. 18. The Zamindari Abolition Act does not, like Section 200, give protection to trespassers, i.e. persons taking or retaining possession of land otherwise than in accordance with the law, except on an action taken u/s 209, Hence, such persons can be ejected in a suit u/s 209 of the Zamindari Abolition Act or in a proceeding' under any other enactment. 18. To sum up, the applicants mortgagees are asamis of plot No. 58, and are not sirdars or asamis of the other mortgaged plots. They are holding these plots without any right or title, and can be ejected in any proceeding, not necessarily under the Zamindari Abolition Act. When their ejectment in a proceeding u/s 12 of the Agriculturists' Act is permissible, the proceeding could be heard and decided even after the repeal of. the Act. In other words, the proceeding u/s 12 had to be dropped with regard to plot No. 58 oily and not the others. 19. To get over the difficulty in obtaining a decree for ejectment with regard to plot No. 58, it is contended on behalf of the mortgagors opposite parties that the filing of an appeal or revision did not make the decree of the trial court ineffective, and consequently the successful party is not deprived of the benefit of this decree simply because the decree had not become final and was being challenged in appeal or revision. The suggestion made is that when the decree of the trial court continues to be effective, the proceeding u/s 12 of the Agriculturists' Act cannot be dropped simply because during the pendency of the appeal or revision, the Act was repealed respectively. Reliance was placed upon the case of State of U.P- v. Mohammad Nooh (3) (A.I.R. 1958 S.C. 86). The effect of this decision was considered by the Supreme Court in Collector of Customs Calcutta v. East India Commercial Co. Ltd Calcutta and Others (4) (A.I.R. 1968 S.C. 1124), where in it was clearly laid down that that view could be applied to the facts of that case and not to other appeals or revisions. The effect of this decision was considered by the Supreme Court in Collector of Customs Calcutta v. East India Commercial Co. Ltd Calcutta and Others (4) (A.I.R. 1968 S.C. 1124), where in it was clearly laid down that that view could be applied to the facts of that case and not to other appeals or revisions. Further, this case of 1963 lays down the law in clear and unambiguous words, namely, that after the disposal of the appeal the operative order is the order of the appellate authority, irrespective of whether it has reversed the original order or modified it or confirmed it, and that the appellate order of confirmation was as efficacious as an operative order as an appellate order of reversal or modification. Another Supreme Court decision in Commissioner of Income Tax, Bombay Vs. Amritlal Bhogilal and Co., AIR 1958 SC 868 , was quoted with approval in the 1963 case. In that 1958 case it was held that in consequence of the decision of the appeal the appellate order was the only order which was valid and enforceable in law. When the order of the trial court merges in the order of the appellate court, one shall have to consider the effect of the order of the appellate court, i.e. the law in force on that date and not the law in force on the date the proceeding was decided by the trial court. The Agriculturists' Act was, by the time the appeal was decided, repealed retrospectively in so far as plot No. 58 was concerned and the proceeding u/s 12 with regard to this plot deserved to be dropped. 20. On account of the legal uncertainty the mortgagees had filed a suit u/s 209 read with Section 14(1) of the Zamindari Abolition Act for the dispossession of the mortgagees, and it was mentioned before me that a Second Appeal was pending before the High Court. The learned advocate for the mortgagors opposite parties made a request that this Court may clarify that the finding with regard to the nature of the mortgaged plots, whether they were sir or fixed rate tenancy plots, shall not be binding on the parties in the other litigation and that this question was left open for consideration in that litigation. The request cannot be granted, though it must be observed that the jurisdiction of this Court is a limited one. The request cannot be granted, though it must be observed that the jurisdiction of this Court is a limited one. As a revisional Court it cannot interfere with a finding of fact recorded by the subordinate court, all the more when such finding appears to be proper and is sup ported by documents on record. It was on the basis of the exemplars filed by both the parties that the lower appellate court recorded the finding that all the mortgaged plots other than plot No. 58 were the sir of the mortgagor while plot No. 58 was in his fixed rate tenancy. The revision has naturally been disposed of on the basis of this finding. 21 The other point raised with regard to the determination of profits is a pure finding of fact which cannot be raised in revision. 22. The revision is partly allowed and partly dismissed and the orders of the subordinate courts with regard to all the plots other than plot No. 58 are maintained while the proceedings u/s 12 of the U.P. Agriculturists' Relief Act with regard to plot No. 58 is quashed, leaving it open to the parties to seek other remedy as they may be advised. The parties shall get and pay costs of all the three courts in accordance with their success or failure. 23. Stay order is vacated. The amounts deposited by the applicants shall to the extent the revision is being dismissed be payable to the opposite parties and the balance can be refunded to the applicants.